163 Ct. Cl. 261 | Ct. Cl. | 1963
In August 1944, plaintiff, then a reserve officer on active service in the Army, appeared before an Army Eetiring Board which found that he was permanently incapacitated for active duty (because of moderate arterial
Insofar as plaintiff seeks disability retirement pay, his claim is undoubtedly time-barred. The Retiring Board rejected his claim finally, and the Secretary approved that decision, in October 1944. Accordingly, the six-year statute began to run when plaintiff was released from service (without retirement pay) on January 1, 1945. Lipp v. United States, 157 Ct. Cl. 197, 301 F. 2d 674 (1962), cert. denied, 373 U.S. 932 (1963); Friedman v. United States, 159 Ct. Cl. 1, 310 F. 2d 381 (1962), cert. denied, 373 U.S. 932 (1963); Braun v. United States, 163 Ct. Cl. 84 (1963). As these decisions show, the proceedings before the Disability Review Board and the Correction Board did not toll the statute or create a new claim. The holding by the Disability Review Board that plaintiff was not incapacitated for service when he was released (reversing the Retiring Board’s finding that he was) did not establish a new cause of action or indicate that the prior Board action was other than final. The Review Board simply affirmed and agreed with the final Retiring Board decision, though on a somewhat different ground; no relief was granted to plaintiff and there was no change in his status with respect to disability retirement pay. The Review Board decision was not a “reopening” of the matter within the meaning of the Friedman case, supra, p. 24 (see p. 16), 310 F. 2d at 396 (see p. 391). Nor
Plaintiff has also presented an alternative cause of action. He says that, if the Retiring Board erred (as the Review Board ruled) in holding him incapacitated in 1944-1945, he was erroneously and unlawfully relieved from active service at the beginning of 1945 on the ground of such incapacity. The result, he asserts, was that he continued actively in the Army and has never been validly released. He asks, therefore, for active duty pay and allowances from January 1, 1945, to the present. We hold this secondary cause of action to be wholly without merit on the face of the petition. There is no allegation or showing that, at or about the time of his release, plaintiff objedbed to being released or sought to remain in the Army. Without some such timely objection, or other special circumstances not alleged here, he must be considered to have accepted the release and waived any invalidity. Moreover, plaintiff was a Rational Guard officer who served on active duty at the will of the authorities; subject to release for many reasons and at many times, plaintiff had no vested right to remain on active duty. His release came in 1945 toward the close of World War II. There is no reason to believe, and plaintiff alleges or offers nothing to show, that he would have been retained on duty for any material period if the Retiring Board had determined that, though he suffered from hypertension, he was not fully incapacitated for active service. His release came too close to the end of World War II for the court to speculate that, unlike millions of other reservists, he would have been kept on active duty. The three decisions cited by plaintiff in support of his position (Appell v. United States, 130 Ct. Cl. 671, 676-77, 690 (1955); Boruski v. United States, 140 Ct. Cl. 1, 155 F. Supp. 320 (1957); Egan v. United States, 141 Ct. Cl. 1, 158 F. Supp. 377 (1958)) do not govern this case. In each of those cases the court found that there was very good reason to believe that the officer would have been re
Defendant’s motion to dismiss the petition is granted and the petition is dismissed.